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Summary:

Apple’s lawyers have a fearsome reputation for defending the company’s intellectual property. But it sure looks like they’re bluffing in the…

Steve Jobs
photo: AP Images

Apple’s lawyers have a fearsome reputation for defending the company’s intellectual property. But it sure looks like they’re bluffing in the controversy over a new Steve Jobs doll.

A UK newspaper caused a stir yesterday when it reported that Apple (NSDQ: AAPL) had threatened legal action against a Chinese company that plans to sell an eerie replica of its late founder starting next month. The Daily Telegraph said Apple claims to own rights to Jobs’ likeness.

Dead or not, Steve Jobs is still huge news and the story went viral. Media outlets, noting that Apple had stopped the release of another Jobs doll in 2010, reported the story as a warning to other companies who would dare appropriate the property of mighty Apple.

But there is a huge problem here — Apple’s legal claim is largely bogus. While people can indeed own rights to their likeness, those rights usually apply only to living people. Unlike other forms of intellectual property like patents or copyrights, image rights do not survive beyond the grave in most places.

Under American law, so-called “personality rights” exist only at the state level — there is no federal law. And only about a dozen states recognize image rights after death. Oddly, it is Indiana that has the strongest protection, restricting commercial use of a person’s image for 100 years after their passing.

But in New York and most other places, there is no protection at all. This was confirmed five years when a court in the state found that no one had the exclusive right to market Marilyn Monroe. Efforts to change the law have so far failed.

What this means is that Apple’s warning about the doll is an empty threat in most places. It may not even be able to stop others from using the name Steve Jobs as, surprisingly, the term does not appear on the company’s long list of registered trademarks. A company spokesperson did not immediately reply to a request for comment.

Apple’s lack of control over the doll is in many ways a welcome reality check. Remember that Steve Jobs was not just a design genius but also a control freak who used layer after layer of intellectual property to create legal force fields around his products. While this boosted Apple, it also shut out many other innovators and helped give rise to the destructive litigation that now mars so much of the technology sector.

The ghost of Jobs and Apple fans may take comfort that they can keep the doll out of at least some states, including his home of California (see full list below). And likewise some countries, including Germany and Argentina, have national laws that protect image rights after death. In other places, though, they must simply hope that good taste will keep people from buying a lifelike Steve Jobs doll with removable hands (a famous quote suggests this is unlikely.)

The Steve Jobs doll will be off-limits in the following states, based on a list in a recent scholarly article: Indiana, Illinois, Texas, Connecticut, Georgia, Florida, California, Ohio, Virginia, Washington, New Jersey, Nevada, Nebraska, Kentucky, Tennessee and Oklahoma.

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  1. Jason Vicinanza Friday, January 6, 2012

    Can you clarify. You say that the doll is legal in most states except Indiana. So do you mean it is illegible to purchase said item in Indiana or is it illegible to even be in possession of the doll in Indiana.
    Also if a doll is made and sold in China what right does Apple have to sue the maker of the doll. Of course no US law is applicable in China.Also if my friend, Harris Jobs, were to call his baby Steve could he be sued?

    1. Jason, are you an Indiana resident hoping to smuggle in clandestine Jobs dolls from Michigan ;) ? If so, the laws prevent selling the dolls not possessing them..  you’ll be ok as long as you don’t get caught with a whole trunkful..

      As for your friend Harris Jobs whowants to name his baby, Steve: that’s fine unless it’s a girl

  2. apple has far more lawyers than engineers… f*cking pathetic.

    1. Actually I’m pretty sure that’s not even remotely true.

  3. .. and they have nothing better to do than file lawsuits over a f*cking doll?  get a grip, cook.

    1. Think of this from a more humane perspective.  You’re Steve’s kids or wife.  How would you feel every time you walked into a store and saw the doll for sale?  And how would you feel if your husband’s image was being used to make millions of dollars? Because those are the real issues at play here and why these laws exist. 

  4. Even where “personality rights” are recognized, why would Apple have a claim on those rights, versus the estate of Steve Jobs?  Does Apple really own the rights to a person?  That’s very 1984.

    1. Good question, Dave. Where post-mortem rights exist, I assume they can be assigned by will. Did Jobs leave the right to his family or to the company? Somehow, I don’t think Apple’s going to tell us..

  5. RightofPublicity Friday, January 6, 2012

    The legal analysis in this article is misleading and off-base.  The Steve Jobs action figure is a violation of his Right of Publicity in just about ever state in the US, as well as in other countries as well. Appreciate the plug for Indiana’s Right of Publicity law, which is very strong, but many other states have statutory Right of Publicity protection for deceased individuals. Even those states without a statute are likely to recognize the right of publicity.  For more information on this fascinating legal doctrine, visit http://www.RightOfPublicity.com

  6. With respect, I disagree. Your comment seems intended more as a plug for your consultancy business than as an impartial legal analysis. The article has links to two scholarly writers who confirm that most states do not extend publicity rights to dead people.

  7. RightOfPublicity Friday, January 6, 2012

    Thanks Jeff. This is an area of concentration for me, so I enjoy kicking around these kinds of issues and I’m not trying to nitpick your article, per se. I did indeed plug my informational website on the Right of Publicity because that is a free online resource for anyone who wants to gain a better understanding of this complicated legal doctrine. But to be clear, this Steve Jobs action figure would be actionable in most states throughout the U.S. This is because the Right of Publicity can be recognized in a variety of forms, and does not rely strictly on a statutory Right of Publicity to be in place. In addition to statutory recognition, there also is common law Right of Publicity recognition, unfair competition, and other areas of the law that would all be potentially relevant to this situation. I think a better title for this article would be “Steve Jobs Doll Illegal in Most States, but perhaps not in New York.”    

  8. Its true. A dozen or more states have explicit publicity statutues around deceased celebs, and others (e.g. New Jersey) recognize them under common law. NY is the real glaring exception, not the rule. If the subject died in a state that protects the right (as CA does), then other states that also protect those rights will also protect the out-of-state celebrity. The Jimi Hendrix and Marilyn Monroe cases mentioned were examples of celebs who were deemed NY residents and therefore not afforded protection in WA and CA, which otherwise would have provided protection

  9. California statute 3344.1:  (a)(1) “Any person who uses a deceased personality’s name, voice,
    signature, photograph, or likeness, in any manner, on or in products,
    merchandise, or goods, or for purposes of advertising or selling, or
    soliciting purchases of, products, merchandise, goods, or services,
    without prior consent from the person or persons specified in
    subdivision (c), shall be liable for any damages…”

    The main question is who now owns the rights, as suggested above.  From the statute:

    “The rights recognized under this section are property rights, freely
    transferable or descendible, in whole or in part, by contract or by
    means of any trust or any other testamentary instrument..”

    Jobs assigned that property right to either 1) his wife/family/relatives; 2) Apple; 3) no one; 4) someone else.  

    Most likely:  His wife is now trustee of his estate, and would own the property right to protect his image — and could sue for the damages in the statute.

  10. Under the common law, typically the rights of publicity and privacy die with the celebrity.  That’s why laws have been passed in some many states–in order for the rights to survive the death of the celebrity.  The Indiana law is restrictive as it is due to the efforts of CMG Worldwide, which is based there and has made its business in licensing rights of deceased individuals, such as Babe Ruth.  See http://www.cmgworldwide.com/corporate/history.htm

    1. It is correct that privacy rights die with the individual, but publicity rights are generally considered property rights.  As a result, the presumption is that most states will recognize those rights after the death of the individual.  Common law often co-exists with statutory authority, in part demonstrating that the statutes are not strictly an effort to allow the rights to survive the death of the personality, but instead are an effort to bring clarity to the extent of recognition that will be afforded.  Thus, the Right of Publicity generally survives the personality except in those states that explicitly reject a post-mortem Right of Publicity, which is not very many states at all.  By the way, Right of Publicity is not just for celebrities or famous persons–the general theory is that every person possesses a Right of Publicity.  Also for the record, CMG did indeed have a role in the passage of the Indiana statute in 1994, but they do not represent Babe Ruth any longer–in fact not since last decade.  With respect to Marilyn Monroe, as noted in the article, after a ruling against the rights of Marilyn Monroe, a California bill was signed into law in 2008 affirming that the California statute indeed always was supposed to apply to those who predeceased passage of the statute–again, in part on the basis that the common law was there all along.  Just trying to add some perspective to the discussion here, I hope it helps, all meant in good spirit!  Also posted a blog on this very topic in case anyone is interested since this comment board isn’t the best place to write in detail:  http://rightofpublicity.com/plans-for-steve-jobs-action-figure-biggest-right-of-publicity-story-of-2012

  11. This is wonderful news for action figure collectors. The scarcer the better!  Now if I can only get a cease-and-desist action against my new play “Jobs: The Formative Years of A Control Freak”, my royalty stream will be ensured for years to come.

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